Staff Report September 20, 2007




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BZA-1746

Henry Huy Nguyen

Variance

Staff Report

September 20, 2007




BZA-1746

Henry Huy Nguyen

Variance

Staff Report

September 20, 2007

REQUEST MADE, PROPOSED USE, LOCATION:

Petitioner is requesting a setback variance in order to complete a 6’ tall privacy fence that is already under construction. The variance requested is for a 19’ setback instead of the required 25’. The property is located at the northwest corner of Hunter Road and Temple Court in Pine View Farms and is commonly known as 3212 Hunter Road, Wabash 2(SW) 23-5.


AREA ZONING PATTERNS:

This home and all surrounding lots are zoned R1B, single-family residential.


AREA LAND USE PATTERNS:

The lot in question is a corner lot with two street frontage setbacks of 25’, which is required of all corner lots located on local roads. All surrounding uses are single-family homes. Staff noticed on a site visit that there are many privacy fences in this subdivision which appear to violate the required 25’ setback.


TRAFFIC AND TRANSPORTATION:

Both Hunter Road and Temple Court are classified as urban local roads per the County’s Thoroughfare Plan.


ENVIRONMENTAL AND UTILITY CONSIDERATIONS:

Water and sewer serve the site.


STAFF COMMENTS:

The petitioner was constructing a 6’ tall privacy fence within the required 25’ street setback on his corner lot in Pine View Farms when a neighbor pointed out the rules regarding setbacks for fences. Because petitioner knew building permits are not required for fences, he had not yet consulted the county about setback requirements for fences and started construction. Once petitioner spoke with the county, he was told that fences exceeding 42” in height are required to meet the standard setback, which in this case is 25’ (UZO 4-1-b-9-B). After an apparent miscommunication, the petitioner authorized the fence company to finish the fence as planned. A few days later, the Building Commission issued a zoning violation. In response to the “red tag” and to discuss possible solutions, petitioner came in to talk to the Building Commission and APC staff about the situation. Staff then advised the petitioner that he had at least three options: move the fence back to the 25’ setback, leave the fence at its present location but shorten it to 42” in height, or file for a variance.


The unnecessary hardship standard in the ordinance states that a hardship shall not be self-imposed nor self-created. The definition goes on to state that self-imposed situations are not hardships and any improvement made in violation of the ordinance is self-imposed. Although the miscommunication between petitioner and the Building Commission is unfortunate, the fence was still constructed in violation of the ordinance, a self-imposed situation, and is not an ordinance-defined hardship. There is no hardship in this case because a conforming fence could be built, or petitioner may reduce the height of the fence to 42” or less.
Regarding the ballot items:


  1. The Area Plan Commission at its September 19, 2007 meeting determined that the variance requested IS NOT a use variance.

And it is staff’s opinion that:

  1. Granting this variance WILL NOT be injurious to the public health, safety, and general welfare of the community because the vision of motorists would not be negatively affected.

  2. Use and value of the area adjacent to the property included in the variance request WILL be affected in a substantially adverse manner because the house directly to the west is oriented towards Temple Court and its side yard is adjacent to petitioner’s rear yard. The location of the fence impedes the neighbors’ line of site from their front yard.

  3. The terms of the zoning ordinance are being applied to a situation that IS common to other properties in the same zoning district because there is nothing unusual about the size, shape, or topography of the lot. The size of petitioner’s lot is comparable to the size of other corner lots in the subdivision.

  4. Strict application of the terms of the zoning ordinance WILL NOT result in an unusual or unnecessary hardship as defined in the zoning ordinance because a 6’ tall privacy fence would be conforming if it is moved back 6’ to be flush with the garage. Additionally, petitioner could reduce the height of the fence.

Note: Questions 5a. and 5b. need only be answered if a hardship is found in Question 5 above.

5a. The hardship involved IS self-imposed because it was initiated in violation of the ordinance and a complying privacy fence can be built.

5b. The variance sought DOES NOT provide only the minimum relief needed to alleviate the hardship because there is no ordinance-defined hardship and there is nothing unusual about this lot.

STAFF RECOMMENDATION:

Denial




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